Europe’s Digital Constitution

Anu Bradford, the Henry L. Moses Professor of Law and International Organization at Columbia Law School and the author of Digital Empires: The Global Battle to Regulate Technology, writes on Verfassungsblog:

Moments after completing his purchase of Twitter in October 2022, Elon Musk tweeted that “the bird is freed”—an apparent reference to his contested acquisition of the social media company and his newfound authority to reinstate his favored free speech norms on the platform. The European Union did not hesitate to respond. Within hours, European Commissioner Thierry Breton retorted to Musk on Twitter: “In Europe, the bird will fly by our rules.” This exchange between an American tech entrepreneur and a European regulator captures the core dynamic in today’s digital economy: American tech companies seek to remake the world with their innovative products and services but face growing regulatory constraints that come predominantly from the EU.

Over the past decade, the EU has emerged as the leading regulator of American tech companies. Many of the EU’s competition enforcement actions today appear to target the tech industry—or, as many would point out, the American tech industry. The EU’s stringent rules on data privacy, disinformation, hate speech, online copyright, and digital services taxes have added to the regulatory burdens the U.S. tech industry faces in Europe. And there is more to come, with exacting rules regulating platform workers currently being debated before the European Parliament and the Council of Ministers and a comprehensive regulation on artificial intelligence (AI) being finalized. European digital regulations are also significant for foreign companies in that they often generate a so-called Brussels Effect, a regulatory phenomenon which explains why global companies frequently implement EU rules across their worldwide operations to avoid the costs of complying with multiple different regulatory regimes.

These regulatory constraints originating from Europe reflect the EU’s deep-seated belief that markets will not, left to their own devices, yield optimal outcomes, and that government intervention is needed to protect citizens’ rights in the digital era. In contrast, the US has traditionally embraced a techno-libertarian view that emphasizes the primacy of free markets, free speech, and the free internet. This pro-market ethos is deeply embedded in the U.S. regulatory regime, which consists of weakly enforced antitrust laws, the absence of a federal data privacy law, and permissive content moderation rules that shield tech companies from liability. As a result, the US has largely been watching from the sidelines as Brussels—not Washington—has been writing the rules for the digital economy.

To read her full article, please click on this link.

Image credit: Image by benzoix on Freepik

Your account